http://www.washingtonpost.com/business/not-all-foreclosures-are-equal/2012/04/19/gIQAg5peYT_story.html?hpid=z3

For more information: http://www.dsnews.com/articles/bofa-makes-changes-to-trim-short-sale-timeline-2012-04-09

The first step is to determine how the owners held tenancy to the property.  If there was a right of survivorship, the surviving owner is now the sole owner of the property.  The two types of tenancy with survivorship are called “joint tenants” and “tenants by the entirety”.  Any two individuals can own property as joint tenants, but tenants by the entirety is reserved only for a husband and wife.

If property was held by either joint tenancy or tenancy by the entirety, your analysis is complete and the survivor owns the property outright – and thus can sign the listing agreement, the contract, and any settlement documents.  It is not necessary to go through the probate process for the decedent or review a last will and testament because the tenancy “trumps” the probate process or last will and testament.

If the two owners held title to the property as tenants in common (or if there was only one owner), then we have to embark on step two of our analysis.  Under this circumstance, the property is going to have to go through the probate process (there are always exceptions, like if the property was held in trust) and someone has to open the estate in the county where the individual died.  In the probate process, it must be determined if the decedent died with or without a last will and testament (or “will”).  If they died with a will they are said to have died “testate”, and if they died without a will they are said to have died “intestate”.

If the decedent died testate, then the language of the will is going to control who owns the property or who has the authority to sell the property.  The will most likely does one of two things.  It typically either gives the Executor of the estate the power to sell the property, in which case you would sign the listing agreement and contract with the executor of the estate.  The other possibility is that the will gives the property directly to one or more individuals (“devisees”), in which case those individuals are the owners of the property and are the ones who sign the listing agreement and contract.  (There are different procedures in Maryland and D.C. than in Virginia for effectively transferring the title into the names of the devisees).

The other possibility is that the decedent died intestate (without a will).  In this situation, the state’s intestacy laws are going to determine who owns the property.  A state’s intestacy laws typically take the form of a family tree when trying to determine who the beneficiaries are.  For example, if a man dies without a will, his property will generally go to his surviving spouse under a state’s intestacy laws.  If he is not survived by a spouse, the property will generally be divided equally amongst his surviving children, per stirpes.

The above is just a basic overview of the laws that govern how property is conveyed when someone dies.  There are many exceptions and intricacies that can arise in the above analysis, and we always encourage you to consult an attorney at The Mason Law Firm, PLC prior to entering into a listing agreement or executing a contract.

The Real Estate Settlement Procedures Act (RESPA) is a consumer protection statute that was passed by the United States Congress in 1974.  The Act prohibits kickbacks between settlement service providers in the real estate settlement process.  The Act aimed to prevent undisclosed kickbacks between lenders, real estate agents, construction companies, and title insurance companies that Congress felt took advantage of consumers and inflate the costs of real estate transactions.

The issue in front of the Supreme Court is whether the plaintiff actually sustained an “injury” as defined by Article III of the U.S. Constitution if the kickback does not affect the price or quality of the settlement service being provided.

One line of questioning from conservative Justice Anthony Scalia questioned “How does it harm [the plaintiff] to get a title insurance policy for the price of $453 from what you call a kickback-free seller, as opposed to getting the same title insurance for $453 from a non-kickback-free seller? Is that an injury-in-fact?”.

Among the liberal Justices, Justice Elena Kagan voiced her support for not requiring the plaintiff to prove actual injury “because there’s been a judgment made that these kinds of practices tend to decrease service and tend to increase price and therefore I don’t have to prove those matters.”

As for Justice Anthony Kennedy, who often proves to be the deciding vote, he seemed to be on the side of First American Financial Corp: “If you were to say he was entitled to it and therefore, there is an injury, that’s just — that’s just circular,” said Kennedy.